Constructive Dismissal: Appealing the Last Straw

Constructive Dismissal: Appealing the Last Straw

Can the rejection of an appeal against a final written warning constitute a ‘last straw’ for the purposes of a constructive dismissal claim? Not in the case of Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978, where the Court of Appeal determined that “such a process, properly followed…cannot constitute a repudiatory breach of contract, or contribute to a series of acts which cumulatively constitute such a breach.”

The appellant in this case had been involved in an altercation with a colleague and raised a grievance over the matter. This triggered disciplinary proceedings against her which were conducted by way of a combined grievance/disciplinary procedure. The outcome was a final final written warning against the appellant for inappropriate behaviour. She appealed this sanction, but due to a period of maternity leave and various other factors, the appeal was not concluded until some 15 months after the incident. When the appeal was finally rejected, the appellant brought a claim for constructive unfair dismissal, claiming that the rejection of her appeal was the last straw in a series of acts which, taken together, amounted to a breach of the implied term of trust and confidence.

The employer successfully applied to strike out her claim. The judge at first instance decided that the disciplinary process and its outcome were unarguably reasonable and so there was no reasonable prospect of the appeal outcome constituting a ‘last straw’. On appeal, the EAT recognised a complication arising from the authority of Addenbrooke v Princess Alexandra Hospital NHS Trust UKEAT/0265/14, which had stated, ‘if there is subsequently conduct which, taken together with the employer’s earlier fundamental breach, causes the employee to resign or plays a part in the decision of the employee to resign, the later act effectively reactivates the earlier fundamental breach’. Although the appeal was dismissed, the Court of Appeal granted leave to appeal so as to properly review the ‘last straw’ doctrine and its interaction with the re-activation of ‘waived’ or ‘affirmed’ breaches.

The Court of Appeal this week dismissed the appeal and affirmed the well-known earlier decision of the Court of Appeal in London Borough of Waltham Forest v Omilaju [2005] ICR 481. The pertinent part of Lord Justice Dyson’s judgment in that case was cited in full as follows,

“19. … The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term. I do not use the phrase ‘an act in a series’ in a precise or technical sense. The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant. 

  1. I see no need to characterise the final straw as ‘unreasonable’ or ‘blameworthy’ conduct. It may be true that an act which is the last in a series of acts which, taken together, amounts to a breach of the implied term of trust and confidence will usually be unreasonable and, perhaps, even blameworthy. But, viewed in isolation, the final straw may not always be unreasonable, still less blameworthy. Nor do I see any reason why it should be. The only question is whether the final straw is the last in a series of acts or incidents which cumulatively amount to a repudiation of the contract by the employer. The last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. Some unreasonable behaviour may be so unrelated to the obligation of trust and confidence that it lacks the essential quality to which I have referred.
  1. If the final straw is not capable of contributing to a series of earlier acts which cumulatively amount to a breach of the implied term of trust and confidence, there is no need to examine the earlier history to see whether the alleged final straw does in fact have that effect. Suppose that an employer has committed a series of acts which amount to a breach of the implied term of trust and confidence, but the employee does not resign his employment. Instead, he soldiers on and affirms the contract. He cannot subsequently rely on these acts to justify a constructive dismissal unless he can point to a later act which enables him to do so. If the later act on which he seeks to rely is entirely innocuous, it is not necessary to examine the earlier conduct in order to determine that the later act does not permit the employee to invoke the final straw principle. [Emphasis supplied]”

Effectively therefore, if the conduct complained of is continued by a further act or acts, in response to which an employee resigns, they can still rely on the totality of the conduct in order to establish the necessary fundamental breach. The obvious observation otherwise is that “it would be extraordinary if, by failing to object at the first moment that the conduct reached the Malik threshold, the employee lost the right ever to rely on all conduct up to that point.”

That being the case however, Underhill LJ agreed that the appeal outcome in the instant case was incapable of forming part of a cumulative breach. Had the conduct of the disciplinary process been seriously unfair, a tribunal would very likely have held that that was a sufficient repudiatory breach in itself, without the need to refer back to events of a different character some time previously. The appellant was – of course- entitled to believe the outcome to be wrong; but the true test is objective, and a fair disciplinary process cannot, viewed objectively, destroy or seriously damage the relationship of trust and confidence between employer and employee simply because the outcome was not desired by the employee.

For cases of constructive dismissal therefore, legal advisers (and tribunals) should ask themselves the five questions posed by Underhill LJ as follows:

(1)              What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?

(2)              Has he or she affirmed the contract since that act?

(3)              If not, was that act (or omission) by itself a repudiatory breach of contract?

(4)              If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term? If it was, there is no need for any separate consideration of a possible previous affirmation.

(5)              Did the employee resign in response (or partly in response) to that breach?

As Underhill LJ observed although none of the questions are conceptually problematic in and of themselves, “answering them in the circumstances of a particular case may not be easy.” The Magdalen Chambers employment team are on hand to assist for those difficult cases.

The on-going process of reform – Financial Remedies Courts

Although there has been much reform of the processes and procedures in the family justice system in recent years, there is one area in which little has been done and much needs to be done: financial remedies. Some of its failings were exposed by the Law Commission in its 2014 report, ‘Matrimonial Property, Needs and Agreements’, Law Com No 343. They need to be remedied.

https://www.judiciary.gov.uk/wp-content/uploads/2014/08/view-from-the-president-of-family-division-20180123.pdf

Case law update: Placement with adopted siblings

Last week the Court of Appeal gave judgement in Re B (A child) [2018] EWCA Civ 20 this was an unusual but interesting adoption case where the court had to weigh up the importance of a potential relationship with a full sibling who had already been adopted against placement with a family member.

The proceedings related to a little girl, B, who was born in the spring of 2016. B had an elder full brother, H, who was born in 2015 and was adopted in 2016. The essential issue before the judge was whether B should be placed with H’s adoptive parents or with her father’s cousin.

H’s adoptive parents were not party to the proceedings, the reason for this was as stated by Sir James Munby in Re T (A Child) (Early Permanence Placement) [2015] EWCA Civ 983[2017] 1 FLR 330:

“The care judge is concerned at most with consideration of adoption in principle, not with evaluating the merits of particular proposed adopters. There is no need for the prospective adopters to be joined, for it is the children’s guardian … who has the task, indeed is under the duty, of subjecting the local authority’s care plan to rigorous scrutiny and, where appropriate, criticism.”

In Re B the trial judge considered Re T which she distinguished on the basis that the facts before her were sufficiently different. In Re T the potential adopters had also been the child’s foster carers whereas in the instant case H’s adoptive parents had no pre-existing relationship with B.

Her Honour Judge George, whose decision was upheld on appeal stated that “a degree of comparison between the options before the court is unavoidable in seeking to establish what [B]’s welfare needs are and how they can best be met. That inevitably happens when the court weighs up the pros and cons of each option. However, as I hope this judgement will show, it is the principle of adoption that the court is considering in the particular facts of this case, not choosing the better of two alternative placements.” She went on to say “the court must undertake the necessary balancing exercise, but in the knowledge that the adoption placement whilst still being considered in principle holds [H]” She reminds herself that the court is carrying out a holistic global analysis of the pros and cons or each option.

The fathers appeal was dismissed.

Joint Head of Chambers, Michael Berkley is appointed as a Circuit Judge

Chambers are delighted to announce the elevation of Michael Berkley to the Circuit Bench. He has been appointed to sit as a Civil Judge based in Salisbury, but will be covering the whole eastern region of the Western Circuit. He will be formally sworn in at a ceremony before the Master of the Rolls at the Royal Courts of Justice on 5th February 2018.

Michael has given his inspiring and unstinting dedication to jointly leading chambers, with Christopher Naish, since the formation of Magdalen in 2013, for which chambers owes a debt of gratitude. Prior to the merger that brought about Magdalen, Michael had established, and headed, Rougemont Chambers from 1997 as the leading Civil set of chambers in Exeter.

His colleagues and clerks – his professional family – congratulate Michael on his fantastic achievement. We are immensely proud and wish him well in his future career, as we are sure do all of his former clients.

Exeter Family Court Clinic Needs you!

The Exeter Family Court Clinic (or EFCC) was launched in May 2017 to provide limited free support to LiPs. We need more volunteers to help with this new initiative.

The clinic runs monthly at the Exeter Combined Court offering legal advice and support to LiPs involved in child arrangements or domestic violence proceedings by means of short pre-booked appointments. It is not extended to cover LiPs in financial remedy or care proceedings and does not involve court representation.

The aim of the clinic is to help prepare LiPs for hearings and raise awareness of how the Family Court works.

The development of the clinic has been driven by barristers and solicitors, who work in partnership with the Personal Support Unit (PSU) in Exeter and the Bar Pro Bono Unit.

At present we have 23 lawyers signed up, volunteering at least a half-day a year to the scheme but due to the demands of the service, we need more!

If you are a family solicitor, legal executive or barrister of over 1 years PQE and would like to support the clinic, please contact Carol Mashembo, Magdalen Chambers on 01392 285200 or email cmashembo@magdalenchambers.co.uk

We are having an EFCC stand at Exeter Combined Court on 8th November 2017 during Pro Bono Week. Please come and say hello!

Exeter’s legal community raises £2,780 for city tribute

We are delighted to have been involved with other members of Exeter‘s legal community gathered in Southernhay yesterday, for a charity cheque presentation, after raising over £2,500 for the creation of a permanent cultural tribute to the buildings that perished in last year’s Cathedral Yard fire.

Property Search Group came up with the idea of bringing together Exeter’s law firms to raise money for the Historic Exeter Fire Appeal, by commissioning and auctioning a painting of a day in the life of Southernhay, traditionally the city’s legal hub.  The unique and quirky painting, created by Devon artist and illustrator Sara Nunan, features the city’s solicitors and barristers enjoying their hobbies and interests from surfing to singing and rugby to reading.

The painting was auctioned at the Mercure Exeter Southgate at the end of March, by TV’s Homes under the Hammer auctioneer Scott Gray, and won by 24-year-old Tom Backhouse, of TerraFirma, whose father Inspector Mark Backhouse was involved in the emergency response to the blaze.

The original painting was sold for £310, with an accompanying painting by Sara of Cathedral Yard selling for £320. The funds raised from the auction were combined with donations from the 13 law firms, for involvement in the painting, and the sale of limited edition prints, giving a final total of £2,780.

The Fire Appeal, administrated by Devon Community Foundation, has already raised over £20,000 and given grants to staff and small businesses affected by the fire. With the Fire Fund now coming to a close, the money raised by the Southernhay Life campaign will go towards the creation of a permanent cultural tribute, after a public vote run by the Foundation.

Scott Walker, of Devon Community Foundation, said: “The Southernhay Life campaign was a very fitting way to draw to a close the Exeter Historic Fire Appeal.

““Scott would like to thank PSG, the Exeter Legal community and the winning auction bidders for their generosity. The money raised will enable us to carry out the community’s wishes, to use the remaining money to create a permanent cultural tribute that recognises the historical importance of the buildings lost.

“The next step, towards the realisation of a cultural tribute, will be for Devon Community Foundation to commission an artist.”

The participating law firms, who donated funds are, Browne Jacobson, Crosse and Crosse, Dunn and Baker, Everys, Foot Anstey, Ford Simey, Gilbert Stephens, Kitsons, Magdalen Chambers, Michelmores, Morgan and Pope, Stephens Scown and WBW Solicitors.

Andy Towers of PSG, which provides conveyancing search services to legal firms across the region, said: “We’re thrilled that so many of Exeter’s legal firms decided to come together to support the campaign and thank them for their generous donations. We are also grateful to Devon and Somerset Law Society for their support of the campaign.

“We look forward to the completion of the cultural tribute, which we hope will be enjoyed by Exeter residents and visitors for many years to come.”

Magdalen Chambers supports fundraising tribute to the Catherdral Yard Fire

Unique Exeter Painting Sold for Fire Fundraising

Bought for policeman who helped in the response to the blaze 

A painting depicting everyday life in Exeter’s Southernhay district has been auctioned to raise funds for a new cultural tribute after the Cathedral Yard fire. 

Property Search Group wanted to bring together the city’s law firms to raise money by commissioning and auctioning the painting, created by Devon artist and illustrator Sara Nunan.

Solicitors and colleagues gathered at the Mercure Exeter Southgate on Thursday (March 30) for the auction, conducted by TV’s Homes under the Hammer auctioneer Scott Gray.

The painting was won by 24-year-old Tom Backhouse, of TerraFirma, whose father Inspector Mark Backhouse, was involved in the emergency response to the blaze.

He said: “It’s an original piece of artwork and the money is going to a good cause which is the most important thing. I’ve never owned a piece of original art so that’s definitely a first. I was born in Exeter, my parents have lived in Exeter most of their lives, my dad works in the police force and was involved in the fire so it has a personal tie.”

The original was sold for £310, with an accompanying painting by Sara of Cathedral Yard selling for £320. Combined with donations from the 13 law firms for involvement in the painting, and the sale of limited edition prints, £2,620 was raised.

The money will go to the Devon Community Foundation for the cultural tribute, following the fire that destroyed the Royal Clarence Hotel last October.

Andy Towers of PSG, which provides conveyancing search services to legal firms across the region, said: “We’re thrilled that so many of Exeter’s legal firms have helped support a lasting legacy following the terrible fire in Cathedral Yard.

“I’m sure the cultural tribute will be a fitting tribute to remember what happened but also a positive statement about the future of the wonderful city of Exeter.”

The painting depicts a ‘day in the life’ of the area, traditionally the city’s legal hub adjoining Cathedral Yard. It features individual solicitors and colleagues from legal firms who have donated money – Browne Jacobson, Crosse and Crosse, Dunn and Baker, Everys, Foot Anstey, Ford Simey, Gilbert Stephens, Kitsons, Magdalen Chambers, Michelmores, Morgan and Pope, Stephens Scown and WBW Solicitors.

The solicitors and barristers are shown enjoying their hobbles and interests like surfing, playing golf, supporting Exeter Chiefs, horse riding, running and singing.

Scott Walker, of Devon Community Foundation, said: “The generosity of the Exeter community continues and this event was a very fitting way to draw to a close the Exeter Historic Fire Appeal.

“I would like to thank PSG, the Exeter Legal community and the winning auction bidders for their generosity. The money raised will enable us to carry out the community’s wishes, to use the remaining money to creating a culture tribute that recognises the historical importance of the buildings lost.”

The Fire Fund, administrated by Devon Community Foundation, has already raised over £20,000 and given grants to staff and small businesses affected by the fire. With the Fire Fund now coming to a close, money raised by the Southernhay Life campaign will go towards the creation of a cultural tribute, after a public vote run by the Foundation.

Steve Clark appointed as Chambers Director

The Joint Heads of Magdalen Chambers, Christopher Naish and Michael Berkley, are delighted to announce that they have appointed Steve Clark to be the new “Chambers Director”.

Michael says

“Steve is a very experienced clerk with over 40 years Administrative and Clerking experience. He joined 3Paper Buildings, London, as a junior clerk in 1977, moved to its Bournemouth annexe in 2000 to manage a crisis, and was so successful that they asked him to remain as Senior Clerk. He was later promoted to overall Head of Clerking at 3PB, with its 5 annexes. He has an intimate knowledge of the Western Circuit and we are delighted to have him at the helm of our large, progressive and successful Chambers. Magdalen Chambers is delighted to announce that Steve will be take office on Tuesday 13th December 2016 and that James Basden will retain the title of Senior Clerk.”